Saturday, March 30, 2013

As previously explained on this blog, the traditional rationale for judicial review begins with the assumption that the Constitution itself is binding law, designed to constrain future generations. As John Marshall explained in Marbury v. Madison, 5 U.S. 137 (1803), the Constitution announces certain "fundamental . . . principles," principles the ratifiers "designed to be permanent." As Marshall further explained, the Constitution therefore imposes upon judges (and other officials) a duty to enforce the document's original meaning so as to implement the ratifiers' choices. Courts that ignore this meaning while purporting to exercise judicial review thus exceed their authority and forfeit any claim of legal legitimacy. (See alsohere for an extensive discussion of how courts should approach judicial review.)

In a house editorial earlier this week, the Richmod Times-Dispatch tried to implement such an "original meaning" approach to constitutional interpretation. For this the Times-Dispatch deserves enormous credit; many media outlets purport to invoke the Constitution as the basis for a preferred policy choice while ignoring the document's original meaning. Despite this promising start, however, the Times fumbled just before crossing the goal line. In particular, the Times claimed that, because Section 5 of the Voting Rights Act was Constitutional when first passed in 1965, an identical statute passed in 2006 (after the prior version expired) must also be constitutional. Thus, the paper concluded, judicial invalidation of the 2006 Act would necessarily substitute the Justices' legislative views for those of Congress and thus constitute unwarranted judicial activism. The paper's argument is worth quoting in full:

"The arguments against Section 5 may be valid. Yet this is not a matter for the Supreme Court to decide. Although the court has changed its attitude toward various questions – with Brown v. Board of Education, for instance, it no longer permitted the segregated schools that had been tolerated in the past – a change regarding Section 5 would be intellectually preposterous. By overturning Section 5, the court in essence would say, “We used to believe this was constitutional, but times have changed and we no longer do.” The answer to the policy question falls outside the court’s competence. Several justices have indicated their skepticism of Section 5’s necessity. Their personal opinions regarding the provisions do not matter. The section’s fate properly rests with Congress. And in 2006, Congress rejected efforts to rewrite Section 5.

Many conservatives would welcome a decision against Section 5. Such a reaction would raise doubts regarding their professed opposition to judicial activism. How would conservatives react if the court were to rule that the Second Amendment no longer restricts gun control because the establishment of a standing Army, a Navy, an Air Force and a Marine Corps means the defense of the realm does not depend on militias in the sense that the Founders understood them?

The Times-Dispatch hopes that Antonin Scalia and his peers remember they are justices, not legislators."

This argument misconceives both the nature of constitutional meaning and the appropriate approach to judicial review. The Constitution does not always enshrine particular results. Instead, as Marshall explained, the document often articulates fundamental and permanent principles. As the Supreme Court explained more than eight decades ago, changes external to the Constitution can compell courts to sustain legislation once deemed unconstitutional or strike down legislation once thought perfectly constitutional.

"[W]hile the meaning of constitutional guaranties never varies, the scope of their application must expand or contract to meet the new and different conditions which are constantly coming within the field of their operation. In a changing world, it is impossible that it should be otherwise. But although a degree of elasticity is thus imparted not to the meaning, but to the application of constitutional principles, statutes and ordinances which, after giving due weight to the new conditions, are found clearly not to conform to the Constitution of course must fall."

See Village of Euclid v. Ambler Realty, 272 U.S. 365 (1926) (Sutherland, J.)

Indeed, Justice Scalia, whom the Time-Dispatch called out, has expressly endorsed such an approach to constitutional interpretation. In particular, Justice Scalia has explained that changes in technology, external to the Court, can require changed applications of the 4th Amendment. See County of Riverside v. McGlaughlin, 500 U.S. 44 (1991). In his McGlaughlin dissent, Justice Scalia explained that the common law principles that animate the Fourth Amendment remained constant and unchanged. That is, the police can only hold a suspect long enough to find a magistrate who can make a probable cause determination. At the same time, he said, technologial changes required a new application of that principle given, as Justice Scalia said, the advent of "helicopters and telephones." This new technology, he said, made it easier to locate a magistrate and obtain a determination of whether probable cause supported the detention, thereby reducing to 24 hours the period of time police can hold a suspect before obtaining a probable cause hearing.

Indeed, several years before McGlaughlin, Judge Robert Bork articulated a similar approach to implementing an "original meaning" methodology. See Ollman v. Evans, 750 F.2d 970 (D.C. Cir. 1984) (en banc)(Bork, J. concurring). Speaking of the task of a Judge applying the First Amendment Bork said:

"There would be little need for judges --- and certainly no office for the philosophy of judging --- if the boundaries of every constitutional provision were self-evident. They are not. In a case like this, it is the task of judge in this generation to discern how the framers' values, defined in the context of the world they knew, to the world we know. The world changes in which unchanging values find their application."

None of this is to say that the Justices should invalidate the 2006 Voting Rights Act. That's a question beyond the scope of this post. One thing is clear, however: the Court's analysis should not end with a determination that the statute was constitutional in 1965.

Wednesday, March 27, 2013

In today's oral arguments regarding the Defense of Marriage Act ("DOMA"), Chief Justice John Roberts leveled a powerful critique of President Obama's incoherent approach to the statute. In particular, the Chief Justice questioned the President's continued enforcement of the Act, despite his simultaneous determination that there are no plausible arguments in favor of the statute's constitutionality. Questioning an advocate appointed to contend that the Court lacked jurisdiction, the Chief Justice suggested that the President should not enforce a statute that he believed to be unconstitutional.

“I would have thought that your answer would be that the
Executive’s obligation to execute the law includes the obligation to execute
the law consistent with the Constitution.And, if he has made a determination that executing the law by enforcing
the terms in unconstitutional, I don’t see why he doesn’t have the courage of
his convictions and execute not only the statute, but do it consistent with his
view of the Constitution, rather than saying, oh, we’ll wait [un]til the Supreme
Court tells us we have no choice.”

Readers of this blog may find the Chief's argument that the President must decline to enforce unconstitutional statutes familiar. Over two years ago, a post on this blog asked whether "the President has the Courage of his (Purported) Constitutional Convictions," after the Obama Administration announced it would continue to enforce DOMA despite its conclusion that there are no plausible arguments in favor of the statute's constitutionality. As that post pointed out, Article II of the Constitution, which requires the President to take care that the laws are faithfully executed, imposes upon the President an independent duty to decline to execute laws the President believes contravene the Supreme Law of the Law, namely, the Constitution itself. Indeed, President Obama has himself asserted the authority to decline to enforce statutes he believes to be unconstitutional. A previous post on this blog defended President Obama's exercise of this power of Presidential Review, demonstrating that arguments to the contrary contradict the text, structure and history of the Constitution.

Applying these principles over a year ago, this blog explained:

"President Obama's approach seems internally incoherent. On the one hand, he claims that he will not defend DOMA because it is unconstitutional, indeed so unconstitutional that there are no reasonable arguments in support of the statute. At the same time, the President and his Attorney General both assert that they will continue to enforce what they believe to be a blatantly unconstitutional law. Huh? If DOMA really is so blatantly unconstitutional, because it works unconstitutional discrimination, analogous to discrimination based on race or religion, should not the President refuse to enforce DOMA altogether? . . . . Why President Obama nonetheless continues to enforce DOMA, given his purported belief that the statute is plainly unconstitutional, is perplexing and causes this blogger to wonder whether President Obama is as certain about his constitutional views on the subject as Attorney General Holder's statement suggests."

This blogger is happy to see that the Chief Justice agrees, whether or not he is a reader of this blog!

Thursday, March 21, 2013

A previous post documented Senator Rand Paul's claim that the Due Process Clause of the Fifth Amendment absolutely proscribes the use of lethal military force, even when expressly authorized by Congress, against American citizens who have joined with foreign enemies to attack the United States on American soil. For instance, in a March 5 statement still posted on the Senator's website, Senator Paul criticized Attorney General Holder for recognizing the possibility that the President could employ military force against American citizens on American soil in extraordinary circumstances.

"The U.S. Attorney General's refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening - it is an affront the Constitutional due process rights of all Americans."

This statement "speaks for itself" as a condemnation of any and all drone strikes against American citizens on U.S. soil.

Indeed, Senator Paul's conversion is so complete that he, along with Senator Ted Cruz, have authored proposed legislation that recognizes the President's authority to employ drones, such as the MQ-9 Reaper pictured above, in certain circumstances. In particular, the operative portion of the proposed legislation provides as follows:

"The Federal Government may not use a drone to kill a citizen of the United States who is located in the United States. The prohibition under this subsection shall not apply to an individual who poses an imminent threat of death or serious bodily injury to another individual. Nothing in this section shall be construed to suggest that the Constitution would otherwise allow the killing of a citizen of the United States in the United States without due process of law."

Such legislation apparently codifies limits that, according to Senators Paul and Cruz, the Due Process Clause imposes on the President's ability to use drones against American citizens on U.S. soil. Moreover, this legislation certainly reflects an improvement over Senator Paul's initial position that any and all drone strikes on American soil violate the Due Process Clause. At the same time, in the opinion of this blogger, this legislation overregulates the President's use of drones, suffering as it does from three defects.

First, by limiting such strikes to instances in which there is "imminent threat of death or serious bodily injury," the legislation unduly restricts the President's ability to employ drones against enemy combatants. After all, not all combatants ipso facto pose an imminent threat of death or serious bodily injury to other persons at all times. Consider, for instance, thousands of heavily-armed American citizens who, perhaps in league with foreign powers, launch an insurrection from a state in the Midwest and march towards Washington with the announced intent of toppling the national government. Must the President wait until the rebels, who are assuredly combatants once they take up arms, are close enough to pose an imminent threat to Washington to strike the insurgents? The legislation mandates such Presidential dithering, contrary to Senator Paul's apparent concession that striking such combatants would not violate the Due Process Clause. That Clause does not prevent the President from choosing the battlefield and taking the fight to the enemy before it approaches its military objective.

Moreover, what if such insurgents, instead of threatening imminent death or bodily harm, instead "mere" threaten imminent destruction of ammunition dumps, rail lines and air bases. Must the President stand idly by or rely on civilian authorities to prevent such battlefield-creating destruction, if possible? As Michael Ramsey has explained, historical practice establishes that, once an individual takes up arms and becomes a combatant, Due Process Protections simply do not apply. (In Ramsey's own words, "[i]t was never thought in the eighteenth century that battlefield combatants had any sort of protection against being killed, even if they were citizens fighting against their own country, nor that combatants had to check the citizenship of their opponents before launching attacks.") The Due Process Clause thus provides no such protection to individuals who have taken up arms against the United States and are actively engaged in battlefield combat, even if such combat consists solely of destroying military equipment or supplies.

Second, the proposed statute applies exclusively to drones and thus does not prevent the President from using other weapons platforms, like the AH-64 Apache Helicopter and B-52 Stratofortress pictured above, on American soil. This omission is ironic to say the least: the AH-64 and B-52 are more lethal than any drone the United States has deployed. For instance, the AH-64 carries slightly more Hellfire missiles than the Reaper and also deploys a 30 mm chain gun. Moreover, the B-52 Stratofortress can carry 70,000 pounds of bombs. This blogger is not aware of any principle explaining why the Due Process Clause can prevent drone strikes but not carpet bombing.

To be sure, the statute contains a proviso stating that the express prohibition on drone strikes does not thereby suggest that the "[c]onstitution would otherwise allow the killing of a citizen of the United States in the United States without due process of law." However, this is an awkward provision to say the least. After all, as explained in a previous post on this blog, the September 18, 2001 Authorization to Use Military Force ("AUMF") itself authorizes the President to use force against Al Qaeda and its supporters. Absent more detailed legislation to the contrary, then, the President is entitled to employ whatever weapons Congress has placed at his disposal, including B-52s and AH-64s, to execute the AUMF, including within the United States if necessary. Moreover, in exercising this authority, the President has an independent duty to ascertain and adhere to any relevant constitutional limitations. Thus, the legislative proviso quoted above subtracts nothing from the AUMF, leaving the President entirely free to employ non-drone lethal force when he believes that such a use of force comports with the Due Process Clause. Hopefully the President would take a more pragmatic and historically-ground view of the limits imposed by the Due Process Clause and reject the sort of mechanical application of the imminence standard that the proposed legislation would impose on the use of drones.

Third, if passed, the legislation would strangely leave the President less able than a local police department or individual state to counter insurrections by American citizens or combinations of Americans with foreign enemies. After all, the statute applies only to the "Federal Government" and not the States or any subdivisions thereof. Moreover, Article I, Section 10 of the Constitution allows the States to employ military force when necessary to repel invasions. Finally, states retain vast police powers of the sort necessary to maintain law and order within their borders. (See U.S. Constitution, Amendment X). Thus, as written, the current draft legislation would leave states perfectly free to employ drones against Americans who side with foreign enemies against the United States. Of course, states must comply with the 14th Amendment's Due Process Clause. However, as explained above, due process constraints do not prevent states or the national government from employing military force against combatants before such combatants pose an imminent risk of harm.

Hopefully the Congress will reject the Paul/Cruz effort to overregulate the use of Drones.

Wednesday, March 20, 2013

Earlier today the U.S. Court of Appeal for the Fifth Circuit struck a blow for economic liberty, efficiency and consumer welfare. In St. Joseph Abbey v. Louisiana State Board of Embalmers and Funeral Directors, No. 11-30756 (March 20, 2013), the Fifth Circuit invalidated rules promulgated by the Louisiana State Board of Embalmers granting funeral homes the exclusive right to sell caskets and thus excluding St. Joseph Abbey and other so-called third party vendors from selling caskets at reasonable prices. Among other things, the court found that the Abbey produced and sold two models of casket: "monastic" and "traditional," for $1500 and $2000 respectively, prices significantly lower than those charged by the state's funeral homes.

The Fifth Circuit held that Louisiana's regulations coercively excluding various producers from the market abridged St. Joseph Abbey's economic liberty without due process of law, thus contravening the 14th Amendment to the U.S. Constitution. Writing for the court, Judge Patrick Higginbotham, pictured above, rejected Louisiana's remarkable claim that a bare desire to enrich the state's funeral homes at the expense of grieving families was, without more, a valid "rational basis" that would support such exclusionary legislation. Simply put, the court said, "naked economic preferences are impermissible [bases for legislation] to the extent they harm consumers."

After rejecting Louisiana's bid for the authority to destroy economic liberty for the sake of enriching incumbent producers, the court went on to reject two other purported bases for the regulation. First, the court rejected Louisiana's claim that the regulations helped ensure that grieving consumers made a wise selection of caskets in light of what the court called "complexities that arise from burial conditions in any given area." According to the court, Louisiana law already required funeral directors to provide their clients with such advice, in return for a mandatory "basic services fee." Hence, requiring consumers also to purchase their caskets from such funeral homes could not enhance the quality of advice consumers might receive. Second, the court rejected the state's claim that such coercive exclusion protected public health and safety. As the court pointed out, Louisiana law does not require burial in a casket in the first place, regulate the construction or design of caskets or require funeral directors to have any "special expertise in caskets." Thus, there was simply no plausible connection between the ban on the sale of caskets by independent sellers like the Abbey and public health or safety. If anything, it seems, the flimsy and patently pretextual nature of Louisiana's asserted rationales helped confirm that the rule were the product of industry capture of the regulatory process. Or, as the court put it, the regulation entailed "the taking of wealth and handing it to others . . . [for the] protection of rule makers."

The decision is remarkable for at least two reasons. First, as already noted, Louisiana openly and notoriously asserted the right coercively to abridge the Abbey's economic liberty for the sole purpose of enriching funeral directors at the expense of grieving consumers. Apparently Crony Capitalism is alive and well in Louisiana. Second, the Fifth Circuit expressly rejected this contention, holding that the Due Process Clause itself imposes certain restrictions on legislative goals in addition to those restrictions contained in the Bill of Rights and other constitutional provisions. In so doing the court implicitly rejected language to the contrary in Ferguson v. Skupra, 372 U.S. 726, 728-31 (1963). In Skupra, the Justices sustained a ban on debt adjustment by non-lawyers, without identifying any rational basis for the coercive infringement on occupational liberty. (As the Fifth Circuit noted, however, subsequent Economic Due Process decisions have, in fact, identified rational bases when rejecting challenges to similar legislation. See New Orleans v.
Dukes, 427 U.S. 297 (1976).)

More fundamentally and equally remarkable, today's decision seems in tension with the poorly-reasoned Slaughterhouse Cases, 83 U.S. 36 (1872). Slaughterhouse, some will recall, involved a challenge to a previous example of Louisiana Crony Capitalism, namely, the state's grant of a monopoly over the slaughterhouse business in the parishes of Orleans, Jefferson, and St. Bernard, totaling over 1100 square miles. In an opinion by Justice Miller, also pictured above, the Court rejected claims that this coercive imposition of a monopoly contravened the Due Process Clause, Equal Protection Clause or Privileges and Immunities Clause, holding that the monopoly grant fell within the police power. This holding does not withstand even minimal scrutiny, given that generally applicable regulations could have satisfied any valid health or safety interest. Simply put, the statute challenged in Slaughterhouse simply enriched some at the expense of others and would not have survived the Fifth Circuit's more realistic analysis.

No doubt some will criticize the Fifth Circuit for purported "judicial activism" along the lines of Lochner v. New York, 198 U.S. 45 (1905). Both Lochner and its progeny, of course, protected occupational liberty and liberty of contract from abridgments, including minimum wages, maximum hours, state price fixing and the like, that fell outside the police power, that is, did not combat externalities or other market failure. See also Charles Wolff Packing Company v. Kansas Court of
Industrial Relations, 262 U.S. 522, 535-42 (1923) (voiding state's regulation of the wages of meatpackers in a highly competitive industry) (Taft C.J.) (unanimous). In so doing, the Court invalidated numerous measures that, for instance, imposed disproportionate costs on small firms, advantaging larger firms. Moreover, as previously explained on this blog, federal interference with the sort of liberty that Lochner protected both deepened and lengthened the Great Depression, thereby creating unnecessary economic misery. In any event, the Fifth Circuit convincingly disclaimed any reliance upon Lochner and its progeny, which scrutinized both the means and ends of legislation more carefully than did the Fifth Circuit today. Perhaps the Fifth Circuit's decision is the first step down the road toward revitalizing Lochner and greater protection for economic liberty. If so, that road will be long indeed.

Saturday, March 16, 2013

Previous posts on this blog have extolled the virtues of competitive federalism. (Seehere, here and here, for instance.) By diffusing the power to spend, tax and regulate among rival jurisdictions, a federal system forces states to compete among themselves to attract and retain productive citizens and business enterprises. Like competition in a free market, such rivalry can induce states to supply an optimal mix of fiscal and regulatory policies.

At the same time, the existence of numerous nominally-independent states does not thereby assure a well-functioning system of competitive federalism. Instead, as this blog has previously explained, undue expansion of central political authority can interfere with competitive federalism, by distorting or removing the incentives that states possess to offer an optimal mix of fiscal and regulatory policies. For instance, a prior post on this blog explained that federal labor laws that penalize a firm for opening a new factory in so-called "right to work" states can distort the incentives that states might other have to offer business-friendly labor policies. Also, a more recent post explained that high federal income taxes, combined with the ability to deduct state taxes from one's federal taxable income, can allow high tax states to export the cost of even higher taxes to citizens in other states, thereby attenuating the threat that citizens subject to onerous tax and spending policies will migrate to other states and weaken the discipline of competitive federalism.

The federal government is not the sole threat to competitive federalism, however; states themselves can adopt policies that undermine federalism. For instance, if states refuse to recognize shareholders' decision to avail themselves of a particular state's corporate law, then competition between the states for corporate charters will not result in a "race to the top" and efficient corporate law. Moreover, if states prevent their citizens from migrating to other states, then such states may avoid the negative consequences of adopting, say, confiscatory taxation or unduly burdensome regulation, thereby conscripting their citizens to endure suboptimal economic policies.

Happily for the American system, the Supreme Court put an end to such conscription 145 years ago today, in Crandall v. Nevada, 73 U.S. 35 (1868). In Crandall, the Court evaluated a Nevada statute that imposed a tax upon railroads and other modes of interstate transportation of $1 per passenger carried from Nevada to another state. The Court unanimously invalidated the tax, holding that, in a federal system, individual states cannot discourage their citizens from exiting the state to, for instance, travel to the nation's capital or other organs of the national government. Two concurring justices embraced a more convincing rationale, namely, that the statute in question contravened the dormant component of the Constitution's Commerce Clause, by deterring the free movement of citizens between states, for whatever purpose. Just five years later, in the Slaughterhouse Cases, the Supreme Court reaffirmed this result, opining that the Privileges and Immunities Clause of the newly-adopted 14th Amendment protected certain rights of national citizenship, including the right of a citizen to travel from one state to another. In so doing, the Court revived the protection for this right originally found in the Articles of Confederation, which provided that "the people of each State shall have free ingress and redress to and from any other State."

It should be clear that Crandall is a fundamental if underappreciated cornerstone of this nation's system of competitive federalism. Without this cornerstone, states could effectively imprison their own citizens, foisting upon them various forms of economic and other oppression. Markets cannot function effectively if firms or otehr market actors can force customers or suppliers to deal with them, and the "market" in which states in a federal system compete is no exception.

Saturday, March 9, 2013

William and Mary has released its football schedule for the 2013 season. The slate includes six home games against: Hampton, Rhode Island, U. Penn., James Madison, New Hampshire and Towson. The Tribe will open with FBS opponent West Virginia. As Tribe fans know, the Tribe always opens with an FBS opponent; the Mountaineers will be the first non-ACC FBS opponent since the Tribe played Marshall in the fall of 2005. Other highlights of the schedule include away games against arch-rivals Villanova and Delaware, as well as home games against James Madison and New Hampshire. Moreover, as it has done over 100 times before, the Tribe will play Richmond, for the Capital Cup, so named because both Williamsburg and Richmond have served as the Commonwealth's Capital. As previously explained on this blog, this is one of the longest-running rivalries in College football, in which the Tribe holds a slight edge.

Wednesday, March 6, 2013

Some, including Senator Rand Paul of Kentucky, are taking issue with Attorney General Holder's claim that the President may lawfully employ drones to attack American citizens if such individuals pose an imminent military threat against the United States. Indeed, Senator Paul has gone so far as to begin a filibuster against John Brennan, President Obama's nominee for CIA Director, saying he will only relent if President Obama promises never to employ drone strikes (or, presumably, other lethal force) on American citizens on American soil. According to the Senator:

"The U.S. Attorney General’s refusal to rule out the possibility of drone strikes on American citizens and on American soil is more than frightening, it is an affront on the constitutional due process rights of all Americans."

"I will speak as long as it takes, until the alarm is sounded from coast to coast that our Constitution is important, that your rights to trial by jury are precious, that no American should be killed by a drone on American soil without first being charged with a crime, without first being found to be guilty by a court."

Senator Paul has also said "I will not let [President] Obama shred the Constitution."

At the outset it should be noted that a drone strike against an American citizen who has joined Al Qaeda would not be a unilateral executive action. Instead, as previously explained on this blog, Congress has authorized the President "to use all necessary and appropriate force against those nations, organizations, or persons he determines planned, authorized, committed, or aided the terrorist attacks that occurred on September 11, 2001, or harbored such organizations or persons, in order to prevent any future acts of international terrorism against the United States by such nations, organizations or persons." (emphases added). This legislation does not empower the President to "arrest and charge" members of Al Qaeda. Instead, the resolution, entitled the "Authorization to Use Military Force," authorizes him to use "force." Moreover, the legislation does not require or contemplate that the President will hold a hearing before using such force. Instead, it empowers the President himself, and not a judge or jury, to "determine" which individuals fall into the relevant category. In short, Congress, which possesses the power to authorize war, has granted the Commander-in-Chief plenary power to employ the nation's military assets against a defined enemy. In these circumstances the President's "authority is at its maximum, for it includes all that he possesses in his own right plus all that Congress can delegate. In these circumstances, and in these only, may he be said (for what it may be worth) to personify the federal sovereignty." See Youngstown Sheet and Tube v. Sawyer, 343 U.S. 579 (1953) (Jackson, J. concurring).

To be sure, such power is not unlimited but is instead still subject to independent constitutional limitations. Thus, Congress could not, for instance, empower the President to use military force against all American Presbyterians because it believes that religion to be false. Nor could it authorize the President to round up and detain all Muslims because most if not all members of Al Qaeda profess to be Muslims. However, Congress has done no such thing in this case. Instead, Congress has authorized the use of force against a foreign-based organization that attacked the United States in 2001, an attack that was the culmination of a war, documented by the 9-11 Commission Report, that the organization launched against the United States during the 1990s. That war, it will be recalled, included bombings of two U.S. Embassies, the Khobar Towers in Saudi Arabia, and the U.S.S. Cole in Yemen; each attack killed several Americans. The 9-11 attacks killed over 3,000 people. Congress could have, if it wished, done nothing, doubling down on the pre-9-11 policy of responding to Al Qaeda's war against the United States with the same tactics employed against the Mafia, that is, wiretaps, warrants and indictments. In the same way, Congress could have ignored Hitler's declaration of war against the United States while FDR sought warrants for Hitler's arrest. However, Congress chose a different approach, as it was entitled to do. That's why President Obama employed a Seal team, and not an extradition order, against Osama Bin Laden, and, as previously explained on this blog, properly so.

With all due respect to Senator Paul, the Constitution, including the Fifth Amendment, imposes no per se ban on the use of lethal force, whether via drones, B-52s, or muskets, against American Citizens on American soil. Recall that the President and Attorney General Holder have contemplated only attacks against Americans who, hypothetically, join Al Qaeda and assist it By its terms, the Due Process Clause applies to all "persons," and not just American citizens. Thus, if the Clause requires a judicial hearing before the use of force against an American assisting foreign invaders, then it would presumably require such a hearing before using force against the foreign invaders as well. Such a result, however, would produce strange results indeed. The United States Navy was entitled to depth charge Japanese submarines operating in Pearl Harbor on the morning of December 7, 1941 instead of seeking warrants for the submariners' arrest.

Moreover, and as previously explained on this blog, the Constitution itself expressly contemplates such a use of force. That is, Article I, Section 8, cl. 15 empowers Congress to "provide for calling forth the Militia to execute theLaws of the Union, suppress Insurrections and repel Invasions." (emphases added) The second contemplated use of the militia --- to suppress insurrections --- necessarily entails the use of military force, without trial in Civilian Court, against American citizens who are attacking the United States. This power is not hypothetical or dormant. As Jack Goldsmith has explained, Congress exercised this power at the dawn of the Republic, empowering the President in 1792 to call forth the militia when necessary to put down insurrections or repel invasions. As previously explained on this blog, President Washington did exactly that in 1794, when he called forth the militia to suppress the so-called "Whiskey Rebellion" in Pennsylvania. Had the rebels resisted federal authority, as they had done before Washington gathered the militia, the army that Washington led could have "shot first and asked questions later" instead of placing the rebels under arrest. This contemporaneous construction of the Constitution, by the same Congress that proposed the Bill of Rights, including the Fifth Amendment and its Due Process Clause, is powerful evidence that the use of military force against American citizens on U.S. soil is sometimes lawful. Abraham Lincoln and U.S. Grant apparently agreed.

There is no reason in law or logic to treat Americans who attempt to assist an Al Qaeda attack on the U.S.A. any differently from those who instigated the Whiskey Rebellion or fired on Fort Sumter. Such individuals are taking part in an "invasion" of the United States within the meaning of the militia clause, and Congress can surely authorize the President to use the standing Army, and not merely the militia, to repel such invasions. As Jack Goldsmith has said in the same recent post cited above:

"[T] he President could invoke the AUMF if a U.S. citizen al Qaeda member were in the midst of an attack on the homeland. Imagine, for example, a repeat of 9/11 where there is a known U.S. citizen in the cockpit; the President could rely on the AUMF, in addition to Article II, in meeting that attack. And he could use drones if he wanted (though Congress could, if it wanted, restrict their use)."

Mike Ramsey, another expert on the scope of the war powers, has expressed agreement with Goldsmith, albeit on somewhat different grounds. Seehere.

By contrast, Senator Paul and others who share his position would apparently have the military "stand down" in the face of such an attack because an American citizen is behind it. In my view, Professor Goldsmith plainly has the better of this argument. While Senator Paul's commitment to the Bill of Rights is commendable, the Constitution is not a suicide pact.

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Bishop James Madison

Portrait of Bishop James Madison

Who Was Bishop Madison ?

Bishop James Madison, the cousin of our nation's fourth President, was the President of the College of William and Mary from 1777 until his death in 1812. Prior to appointment as President, Madison served as a professor of natural philosophy and mathematics. During the Revolutionary War, Madison organized a militia company of students. William and Mary claims that Madison was the first professor of Political Economy in the United States. His lectures on the subject relied upon Adam Smith's Wealth of Nations, published in 1776. Along with Thomas Jefferson, Madison was instrumental in founding the School of Law at William and Mary, appointing George Wythe as William and Mary's first Professor of Law and Police.